When a paralegal has previously been exposed to privileged client information, his or her new employer may be disqualified from representing a client, if a court finds that confidential information was shared.

Conflict screening and our right to job mobility

This disqualification rule can cause the firm to lose its client. As a consequence, the client has to spend more money and time hiring a new firm. As a result, it can sometimes be difficult to switch from one form to another for paralegal.

The notion of attorney-client privilege is at the core of the American legal profession.

The legal obligations of the lawyers and firms involved are clearly set out in the Model Rules of Professional Conduct.1

However, the mentioned legal and ethical obligations are not as well defined when the client conflict arises from hiring a paralegal who was privy to confidential client information at his or her previous firm.

—— Applicable rules for paralegals——

It is common knowledge that the normal operation of a law office exposes confidential professional information to [paralegals] of the office.” 2

A hiring firm must prevent a paralegal with confidential information from working on any matters that would breach this confidentiality.3 If a paralegal obtains confidential information and then subsequently shares it with his or her new law firm, "disqualification is mandatory."4

Rules of the paralegal profession

The National Federation of Paralegal Associations (“NFPA”) and the National Association of Legal Assistants (“NALA”) both have codes of professional ethics that bind their members. With respect to preserving client confidentiality, the requirements of these codes are similar to those of the ABA Model Rules.

NALA Code of Ethics in its Canon 7 states that “[a] paralegal must protect the confidences of a client and must not violate any rule or statute now in effect or hereafter enacted controlling the doctrine of privileged communications between a client and an attorney.”

NFPA Model Code states that “a paralegal shall preserve all confidential information provided by the client or acquired from other sources before, during, and after the course of the professional relationship. ”5

—— Courts point of view regarding paralegals——

Some courts in deciding disqualification cases have treated paralegals just like attorneys and applied the Models Rules just as they would do to attorneys.

For example, in Owens v. First Family Financial Services, Inc.,6 the court presumed the paralegal had shared confidences with the current employer and disqualified the team even if there was no evidence that the paralegal had knowledge of the case or worked on the case at the new firm.

And in Koulisis v. Rivers,7 a Florida Court even considered that the presumption should be stronger for paralegals. It argued that because an attorney may face disciplinary proceedings if he or she were to break client's confidences, paralegals who are not subject to this discipline may not be as deterred!

Other courts treat paralegals differently form attorneys. In In re American Home Products Corporation,8 the Supreme Court Of Texas explicitly recognized a distinction between lawyers and non-lawyers and allowed the firm to rebut the presumption that the paralegal shared the information with the firm.

Additionally, courts have declined to “set … out the specific procedures to be implemented in such situations to ensure that non-lawyer employees preserve the confidentiality of information.”9 and have not explicitly developed instructions telling law firms how to properly screen paralegals for conflicts.

—— What are the consequences for us? ——

We can only survive in our job if we can benefit from job mobility and create a successful career for us.

And courts have even recognized that we do not have the same level of job security as lawyers or other professionals.10

Thus, these disqualification rules can have a great impact on our ability to find employment with a different law firm. If a law firm determines that a paralegal has or may have a conflict, that paralegal may automatically miss out on a job opportunity and may have therefore a more difficult time finding new employment.

And the problem is worse for paralegals working in small or medium-sized markets, as there are fewer potential firms to move to and many firms represent opposing sides in disputes.

However, some scholars question whether the profession should be concerned with paralegals retaining this information to the same extent that it is concerned with lawyers protecting client confidences. Lawyers may be more likely to pass on the information because of their intimate knowledge of how valuable it can be for their careers. For us, we know that our new firm will not offer us a partner position, no matter what, so why break ethics rules?11

—— The troublesome state of conflict screening ——

The effectiveness of conflict screening is uncertain. Studies show that potential conflicts are drastically underreported. Many conflict questionnaires are bare-bone and lack standardization. For example, it seems that most questionnaires ask for a client list, but a lot do not require further information.

It is therefore probably time to improve this conflict screening process by shifting some of the screening burden to the former firm.

For example, it has been suggested that the former firm should be compelled to pro-actively inform the other firm of all client matters in which the paralegal would have a potential conflict based on his or her previous work.

This would be a more efficient way of dealing with the issue than relying on paralegals to devise their own methods for tracking and relaying information to their new firm for each and every matter that they worked on in the past and that may present a conflict.

—— Greater accountability? ——

With the recent economic recession, job options are more limited than usual for many paralegals, This may be the perfect time address these issues in a systematic way that would also make transitions to new jobs easier.